tag:blogger.com,1999:blog-42591548720604848312018-03-06T00:09:46.371-08:00Divorce Law in FloridaCall Edward J. Chandler, Esq. 954-788-1355
www.chandler-law.comEdward J. Chandler, Esq.http://www.blogger.com/profile/09175560639902094013noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-4259154872060484831.post-84746101974022466802011-12-30T05:57:00.000-08:002011-12-30T05:57:59.989-08:00Post dissolution - Ex-spouse's entitlement to benefits.<u><i><b>Post dissolution - Ex-spouse's entitlement to benefits.</b></i></u> <br /><br />“A former spouse is not entitled to receive benefits that accrue after<br />the dissolution of the parties' marriage.” Rivero v. Rivero, 963 So. 2d<br />934, 937 (Fla. 3d DCA 2007). Section 61.075, Florida Statutes (2008),<br />provides that in a proceeding for dissolution of marriage, the court shall<br />equally distribute the marital assets and liabilities between the parties.<br /><br />The statute defines “marital assets” as “assets acquired ... during the<br />marriage, individually by either spouse or jointly by them.” This <br />encompasses assets that have been enhanced or appreciated in value<br />“resulting either from the efforts of either party during the marriage or<br />from the contribution to or expenditure thereon of marital funds or other<br />forms of marital assets, or both.” § 61.075(6)(a)1.a.–b., Fla. Stat. (2008).<br />See also Boyett v. Boyett, 683 So. 2d 1140, 1141 (Fla. 5th DCA 1996)<br />(holding that it is not permissible for the former wife to benefit from the<br />former husband's labor after the divorce); Brown v. Minning, 757 So. 2d<br />628, 630 (Fla. 5th DCA 2000) (holding that “current law provides that a<br />spouse should not receive benefits accrued after dissolution of the<br />parties' marriage”).<br /><br />Section 61.075(7), Florida Statutes (2008), “provides that the date of<br />filing of the petition for dissolution is generally the latest date for<br />identifying and classifying marital assets, but the court may value<br />marital assets on a date that the court determines is just and equitable.”<br />Leonardis v. Leonardis, 30 So. 3d 568, 571 (Fla. 4th DCA 2010) (citing §<br />61.075(6), Fla. Stat. (2006); Byers v. Byers, 910 So. 2d 336, 344 (Fla. 4th<br />DCA 2005)).Edward J. Chandler, Esq.http://www.blogger.com/profile/09175560639902094013noreply@blogger.com0tag:blogger.com,1999:blog-4259154872060484831.post-1376089152843275852011-12-30T05:51:00.000-08:002011-12-30T05:52:34.938-08:00Equitable distribution of marital assets .<i><u><b>Equitable distribution of marital assets.</b></u></i><br /><br />“A trial court’s equitable distribution of marital assets is reviewed for<br />an abuse of discretion.” Rafanello v. Bode, 21 So. 3d 867, 869 (Fla. 4th<br />DCA 2009).<br /><br />Section 61.075(3), Florida Statutes (2008), directs trial courts as to<br />the distribution of marital assets and liabilities:<br />In any contested dissolution action wherein a stipulation<br />and agreement has not been entered and filed, any<br />distribution of marital assets or marital liabilities shall be<br />supported by factual findings in the judgment or order based<br />on competent substantial evidence with reference to the<br />factors enumerated in subsection (1). The distribution of all<br />marital assets and marital liabilities, whether equal or<br />unequal, shall include specific written findings of fact as to<br />the following:<br /><br />(a) Clear identification of nonmarital assets and ownership<br />interests;<br />(b) Identification of marital assets, including the individual<br />valuation of significant assets, and designation of which<br />spouse shall be entitled to each asset;<br />(c) Identification of the marital liabilities and designation of<br />which spouse shall be responsible for each liability . . . .<br />§ 61.075(3), Fla. Stat., (2008).<br /><br />The trial court must make reference to the equitable distribution factors in 61.075(1).This and other courts have reversed final judgments of dissolution when the trial court failed to comply with 61.075(3). See, e.g., Dorsett v. Dorsett, 902 So. 2d 947, 954 (Fla. 4th DCA 2005) (finding that “the trial<br />court erred by not making written findings identifying and assigning values to the marital assets and liabilities, in violation of section 61.075, Florida Statutes”); Pignataro v. Rutledge, 841 So. 2d 636, 638 (Fla. 2d<br />DCA 2003) (reversing because “the final judgment does not identify or value any of the parties’ assets or liabilities, and it provides no factual findings to support the distribution scheme”); Whelan v. Whelan, 736 So.<br />2d 732, 733 (Fla. 4th DCA 1999) (reversing a final judgment because it awarded the husband’s interest in the marital home to the wife without providing a valuation of the marital home); Singleton v. Singleton, 696 So.<br />2d 1338, 1338-39 (Fla. 4th DCA 1997) (reversing a final judgment because, among other reasons, it did not comply with 61.075(3)).Edward J. Chandler, Esq.http://www.blogger.com/profile/09175560639902094013noreply@blogger.com0tag:blogger.com,1999:blog-4259154872060484831.post-29577088502180527572011-12-30T05:47:00.000-08:002011-12-30T05:47:31.690-08:00Retaining jurisdiction in the final judgment to award attorney’s fees!<i><u><b>Retaining jurisdiction in the final judgment to award attorney’s fees!</b></u></i><br /><br />Where the trial court fails to address a request for attorney’s fees and costs or to reserve jurisdiction to consider the issue, the final judgment should be reversed and remanded for entry of a corrected judgment<br />reserving jurisdiction to address the request for attorney’s fees and costs. See May v. May, 908 So. 2d 558, 559 (Fla. 2d DCA 2005); Yangco v. Yangco, 901 So. 2d 217, 222 (Fla. 2d DCA 2005); see also Singer v.<br />Singer, 38 So. 3d 889 (Fla. 4th DCA 2010); Perez v. Perez, 846 So. 2d 685 (Fla. 4th DCA 2003). In Harbin v. Harbin, 762 So. 2d 561 (Fla. 5th DCA 2000), the wife petitioned the court for modification of child support and requested attorney’s fees. Her pretrial statement included a request for fees, and at the hearing she asked the court to rule on her entitlement to fees. When the trial court entered its final judgment of modification, it did not include a reservation of jurisdiction to determine fees. The wife moved for rehearing, requesting a ruling on her entitlement to attorney’s fees, but the trial court summarily denied the motion for rehearing.&nbsp; On appeal, the Fifth District held that the trial court should have determined the issue of attorney’s fees and should have reserved jurisdiction for that purpose. The court further explained that even though the trial court failed to reserve jurisdiction on attorney’s fees in its final judgment, “it nevertheless had jurisdiction to amend its final judgment to add the reservation of jurisdiction on the wife’s entitlement to attorney’s fees as the former wife had timely filed a motion for rehearing on this issue.” Id. at 563. Therefore, the court reversed to require amendment of the judgment to reserve fees.Edward J. Chandler, Esq.http://www.blogger.com/profile/09175560639902094013noreply@blogger.com0tag:blogger.com,1999:blog-4259154872060484831.post-4377040436299276582011-12-30T05:42:00.000-08:002011-12-30T05:42:14.643-08:00The trial court's discretion in rejecting the general magistrate’s factual findings.<i><u><b>The trial court's discretion in rejecting the general magistrate’s factual findings.</b></u></i><br /><br />In Anderson v. Anderson, 736 So. 2d 49 (Fla. 5th DCA 1999), the<br />court held as to the trial court’s standard of review of a master or<br />magistrate’s report:<br /><br />It is clear that if one objects to a master’s report, the trial<br />court has an obligation not merely to consider the findings<br />and recommendation of the master but also to review the<br />entire file. But the review is not intended to permit the trial<br />court to make its independent finding of facts or to reach its<br />independent conclusion as to the legal effect of such facts.<br />The review of the entire record is to ascertain whether the<br />master’s finding is supported by competent evidence and to<br />see if the master’s conclusions pass the Canakaris[1] test.<br />Id. at 50-51. In Reece v. Reece, 449 So. 2d 1295 (Fla. 4th DCA 1984),<br />this court held:<br /><br />The findings of fact and conclusions drawn therefrom may<br />not be rejected by the trial court in the absence of clear<br />error. To put it another way, the role of the trial court in<br />reviewing the findings and determinations of the master are<br />similar to those of the appellate court in reviewing a trial<br />court’s findings and determinations. This rule is subject to<br />the observation that it is the trial judge “who under the law<br />is charged with the duty and responsibility of making<br />findings of facts and entering the final decree.” It is also<br />recognized that the trial court may come to different legal<br />conclusions than the master, based upon the master’s<br />findings of fact, without committing reversible error.<br />Id. at 1295-96 (citations omitted). Citing Reece, this court held that<br />“[w]hile the master’s report is clothed with a presumption of correctness<br />as to its factual findings, the trial court may com<br />contract impair his or her obligation to support a minor child, and its corollary that only such<br />contracts that are consistent with the best interests of the minor child<br />will be enforced.” Essex, 503 So. 2d at 1366 (citations omitted).<br />In Shellmyer v. Shellmyer, 418 So. 2d 477 (Fla. 4th DCA 1982), after a<br />judgment of dissolution ordered monthly child support payments by the<br />father, the parents entered into an out-of-court lump sum settlement<br />under which the father conveyed his equity interest in the former marital<br />residence to the mother in lieu of past and future periodic child support.<br />The mother returned to court, claiming that their agreement was<br />forbidden “because the basic right of a minor child to support cannot be<br />affected by an agreement between the parties.” Id. at 477. When the<br />trial court ruled on the mother’s motion, it ordered that the father<br />resume paying child support as well as his arrearages. However, the trial<br />court did not give the father any credit for his interest in the marital<br />residence which he had transferred to the mother. On appeal, this court<br />held that the parties should be returned to the original status quo. The<br />father was to resume paying child support from the date of its cessation,<br />but he would get credit for the arrearages against the value of his equity<br />interest in the marital home.Edward J. Chandler, Esq.http://www.blogger.com/profile/09175560639902094013noreply@blogger.com0tag:blogger.com,1999:blog-4259154872060484831.post-75031562537420405572011-12-30T05:37:00.000-08:002011-12-30T05:40:53.286-08:00Divorce Law in Florida<b><i>ATTORNEY FEES - Contempt and ability to Pay.</i></b><br /><br />The law is well established that the trial court must set forth specific<br />findings concerning the hourly rate, the number of hours reasonably<br />expended and the appropriateness of reduction or enhancement factors.<br />See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla.<br />1985); see also Macarty v. Macarty, 29 So. 3d 434, 435 (Fla. 2d DCA<br />2010) (‘“[A]n award of attorney’s fees without adequate findings justifying<br />the amount of the award is reversible even where the appellant has<br />provided an inadequate record of the trial court proceedings.’” (quoting<br />Esaw v. Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007))). “The<br />presence of competent substantial evidence to support the award does<br />not obviate the need for such specific findings.” Hoffay v. Hoffay, 555<br />So. 2d 1309, 1310 (Fla. 1st DCA 1990).Edward J. Chandler, Esq.http://www.blogger.com/profile/09175560639902094013noreply@blogger.com0